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Why Marriage Deserves Constitutional Protection

Maggie Gallagher’s response to conservatives who have expressed qualms about amending the constitution to define marriage is superb. She approaches the issue from two angles. First, on the federalism argument, she points out mundane matters that are part of the constitution, and wonders why these topics merit nationwide uniformity, rather than state-by-state experimentation, but that the fundamental institution of society is beneath the constitution. Second, she makes a passionate argument about the importance of marriage to civilization, and the devastating effects weakened marriage has and will have on our culture.

Read the whole essay. By reminding me how high the stakes of the marriage debate are, she’s struck me with fear for our country.

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6 Responses to Why Marriage Deserves Constitutional Protection

Matt, I feel like I should be more educated about this topic than I am. So a couple of weeks back, on the day of the Massachusetts decision, I attended the last half of a talk on this subject by Lynn Wardle, a BYU law professor who was speaking to the small chapter of the Federalist Society here at Wisconsin. Unfortunately, I must have missed the main points, because the argument that I heard against gay marriage was far from compelling.

In reading the Gallagher article, I was searching for some meatier arguments. After detailing the decline of marriage as an institution in the United States, Gallagher offers two arguments against gay marriage: (1) society needs traditional marriages because they fulfil the vital function of “creating the next generation and giving children the mothers and fathers they need”; and (2) society needs traditional marriages to reduce the need for government services (“If marriage is not the normal, usual, and generally reliable way of raising children, mothers (and their friends and relatives) will demand an expansion of government services to help them cope.”). My impression is that the second argument is a non-starter in the debate on gay marriage. Although I have no claim to expertise on this, I would be shocked to hear about a connection between the existence of gay couples and an increased demand for welfare. If anything, I would expect an inverse correlation since gay couples are not bound by traditional gender roles.

The first argument, on the other hand, deserves to be taken more seriously. What about the children? Although we are talking about gay marriage, not broken traditional marriages, it seems like the argument here is that the same force that has lead to the corruption of traditional marriages is promoting gay marriage. What is that force? It is a fundamental change in the way people conceive of marriage.

In this regard, Gallagher quotes from the 2000 Marriage Movement Statement:

High rates of divorce and unmarried childbearing reinforce each other, connected as they are by the cultural idea that marriage is expendable for children. If marriage is primarily about adult intimacy, safe haven, and connection, then there is no good reason to get married when you want to have a child, or find you have unexpectedly conceived one. If marriage is mainly about adult yearnings, there is no good reason to work at a struggling marriage when it ceases to be satisfying or particularly intimate. Trade in your spouse as many times as you need to, if satisfaction with your spouse is the purpose of marriage.

This paragraph seems to have been directed at heterosexual cohabitation, not gay marriage, but it is interesting on this latter topic because it raises the fundamental question: what is marriage about? And the bottom line is that when marriage is “primarily about adult intimacy, safe haven, and connection,” then it is not primarily about the children.

While this does not close all of the gaps for me, I think it is the most powerful argument that I have heard against gay marriage.

Taylor, I am confused, too, because I just re-read what I wrote in a dream-state last night. ;-) Let me give this another try.

Opponents of gay marriage have two forms of argument: (1) policy and (2) morality. My guess is that what motivates most opponents of gay marriage is the moral objection to homosexuality, but in the mainstream US political debate today, it is not acceptable to say, “We don’t want to encourage homosexual behavior because it is deviant and unnatural.” That argument would have worked not all that long ago, but I think it is unavailable now. In other words, the moral objection (standing alone) is insufficient. Opponents of gay marriage need reasons, and that means that they need policy arguments.

Lynn Wardle’s approach appears to say, first, that proponents of gay marriage have the burden of proof to show that this innovation has benefits to society. This is a very weak leading argument, and it will not win the day for opponents.

Since homosexuality seems to be a victimless crime (we have some consensus now that people who practice homosexuality are not more likely than practicing heterosexuals to engage in pedophilia and other truly harmful practices), it is also ineffective to look for harm within the relationship. So, if we want to condemn gay marriage, the obvious tack is to think about the effect on children.

Even here, the range of arguments is pretty constrained. For example, you might have heard this argument just a few years ago: “Children of homosexual couples [either adopted or created through modern reproductive technology] will be more likely to be gay.” I have no idea whether that is true, but even if it is true, I think the argument carries no weight in modern political discourse, where homosexuality is judged to be neither right nor wrong.

The only viable argument that remains goes something like this:

(1) society needs strong families so that children of succeeding generations can become responsible adults;
(2) traditional families are threatened by widespread selfishness (this marriage is all about me!);
(3) in recent years, we have been making strides in strengthening traditional family values (including responsibility to children);
(4) the arguments for gay marriage embrace the very attitude that threatens traditional marriages (most of the arguments focus on the needs or desires of the gay partners);
(5) ergo, gay marriages are an innovation that we can do without.

My hesitation (remember, even as I wrote that this was the “most powerful argument” against gay marriage, I said that it did not close all of the gaps for me): Even if all of the premises are true, the conclusion does not necessarily follow. If the prevailing attitude towards heterosexual marriage is that it is about the marriage partners, not about their children, then why should gay partners be deprived of state-sanctioned marriage? Also, note that the premises are based on the idea that society’s interest in the institution of marriage is primarily related to the existence of children. While this seems like part of the picture, it does not seem complete.

So, that’s where I stand at the moment. I would love to read some comments that set me straight, and I am certainly open to correction. Is there a stronger argument against gay marriage that I am missing?

Two things:
(1) The “for-the-children” argument doesn’t rely on the assumption that gay “marriages” are selfish and therefore harmful to our efforts to protect marriage — the argument relies on the children. There is no evidence that homosexual unions are in the best interests of the children – and in fact, the evidence does show that children are happier, safer, and more well-adjusted when they are raised by their mother and their father. That is our ideal — biological two-sex parenting — and that is what our laws reflect. While we don’t punish or prohibit other arrangements prevalent in today’s societies, we promote what is best for the children.

2. Marriage deserves constitutional protection because its fate is in the hands of a few unaccountable judges — instead of in the hands of the people. If the people decide that they want homosexual “marriage”, then fine, that’s the kind of government we live by. But we shouldn’t be subjected to the will of a few, especially on such an important issue. And if a constitutional amendment, federal or state, is the only option to allow the people to decide, so be it.

Following up on this, I found it surprising that in Belgium, one of the first two nations to allow same-sex marriage, they do not allow same-sex couples to adopt. This was reported in an article in today’s Washington Times.

Second, a friend of mine has written an article proposing a different Federal Marriage Amendment which works more like a defense of marriage act. It evidences a preference for marriage as between a man and a woman, however it leaves it to the states to determine what they want to do. It is an interesting compromise on this issue which addresses some of the federalism issues while still working to protect traditional marriage.